Opinion
February 8, 1962
Order entered on July 26, 1961 granting plaintiff's motion for summary judgment under rule 113 of the Rules of Civil Practice and directing an assessment of damages in a personal injury negligence action reversed, on the law, with $20 costs and disbursements to the appellant, and the motion denied, with $10 costs. Plaintiff's reliance on the doctrine of res judicata is invalid. The general rule is that a judgment does not bind persons who are not parties to the action (Restatement, Judgments, § 93; cf. id. §§ 82, 83, especially, Illustration 1, p. 387). Since no affidavit was made by plaintiff or by any other witness to the accident defendant was not obligated to present his version of the accident or otherwise to exculpate himself. Consequently, the motion may not be granted on the ground of the lack of explanation of the prima facie inconsistent statements contained in the motor vehicle report as compared with defendant's affidavit on the prior motion to open a default.
Concur — Botein, P.J., Breitel, Valente and Eager, JJ.; McNally, J., dissents and votes to affirm.